Citation NR: 9636648
Decision Date: 12/26/96 Archive Date: 01/02/97
DOCKET NO. 95-05 812 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Wichita,
Kansas
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder.
REPRESENTATION
Appellant represented by: Elwyn L. Cady, Esq.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Andrew T. Layton, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a December 1993 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Wichita, Kansas, which denied service connection for an
acquired psychiatric disorder. The veteran, who had active
service from June 1980 to March 1981, appealed the December
1993 rating decision to the BVA, and the case was referred to
the Board for review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran asserts on appeal that the RO was incorrect in
denying service connection for an acquired psychiatric
disorder. He contends that he was never diagnosed as a manic
depressive prior to service. The veteran further maintains
that he was deemed emotionally mature and fit for enlistment.
He states that the task of carrying the battalion flag caused
stress. Moreover, the veteran declares that he continues to
receive treatment for his acquired psychiatric disorder and
that he will be forced to take medication for this disability
for the rest of his life.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that service connection for an
acquired psychiatric disorder is warranted.
FINDINGS OF FACT
1. Although a history of an acute psychiatric disorder was
noted prior to active duty, the physician who conducted the
veteran’s March 1979 entrance examination found no
psychiatric defects or abnormalities.
2. Upon discharge from active duty, the veteran suffered
from a moderately severe chronic depressive disorder.
3. The veteran’s current psychiatric disorder may not be
reasonably disassociated from his inservice symptomatology
CONCLUSION OF LAW
An acquired psychiatric disorder was incurred during the
veteran’s active duty service. 38 U.S.C.A. §§ 1131, 5107
(West 1991); 38 C.F.R. §§ 3.102, 3.303 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
Review of the veteran’s service medical records reveals that
prior to active duty, the veteran underwent a psychiatric
consultation prior to active duty for an acute situational
maladjustment due to family problems. Prior to his entrance
examination, an examining psychiatrist stated that the
veteran’s acute situational maladjustment had cleared and
that he was emotionally mature and fit for enlistment.
In March 1981, Medical Board proceedings were convened and
the veteran was diagnosed as suffering from a moderately
severe chronic depressive disorder; and a drug induced,
severe acute psychotic episode which had resolved. The
Medical Board concluded that the veteran suffered from a pre-
existing psychiatric disorder which rendered him unfit for
military service. Accordingly, the veteran was discharged
from active duty.
VA outpatient treatment records from March 1981 to January
1992 reveal that the veteran received multiple diagnoses for
his psychiatric disorder including bipolar affective
disorder, chronic paranoid schizophrenia with mood swings,
antisocial personality disorder, and manic depression. In
particular, the veteran was hospitalized at a VA medical
facility in July 1983, where he was diagnosed as suffering
from manic bipolar affective disorder, antisocial personality
disorder, and alcohol abuse.
Clinical records from Osawatomie State Hospital in
Osawatomie, Kansas, dated from March 1985 to December 1987,
reveal that the veteran received several diagnoses including
manic bipolar disorder, atypical bipolar disorder, mixed
substance abuse, and a history of antisocial personality
disorder.
In March 1993, the veteran underwent a VA mental disorders
examination at the VA Medical Center in Kansas City,
Missouri. The veteran reported that he suffered a mental
breakdown during active duty and was hospitalized for manic
depressive disorder. The veteran stated that he was taking
lithium carbonate for this disorder. The veteran was
diagnosed as suffering from a bipolar affective disorder,
mixed type, and was moderately depressed.
At his August 1996 personal hearing before the undersigned
Board Member, the veteran testified that he was never
diagnosed as a manic depressive prior to service. The
veteran further maintained that he was deemed emotionally
mature and fit for enlistment. He stated that the task of
carrying the battalion flag caused stress. Moreover, the
veteran declared that he continues to receive treatment for
his acquired psychiatric disorder and that he will be forced
to take medication for this disability for the rest of his
life.
Analysis
As a preliminary matter, the Board finds that the veteran’s
claim is “well-grounded” within the meaning of 38 U.S.C.A.
§ 5107(a). Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990);
Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). The Board
finds that the veteran has presented a claim which is not
implausible when his contentions and the evidence of record
are viewed in the light most favorable to the claim. The
Board is also satisfied that all relevant facts have been
properly and sufficiently developed. Accordingly, no further
assistance to the veteran is required to comply with the duty
to assist mandated by 38 U.S.C.A. § 5107.
Service connection may be granted for a disorder incurred in
or aggravated by active duty. 38 U.S.C.A. § 1131. A veteran
who served during a period of war or during peacetime service
after December 31, 1946, is presumed in sound condition
except for defects noted when examined and accepted for
service. Clear and unmistakable evidence that the disability
existed prior to service will rebut this presumption.
38 C.F.R. § 3.304 (1995). The Board finds that although the
veteran was treated for an acute situational maladjustment
due to family problems prior to service, the psychiatrist who
conducted the pre-enlistment psychiatric examination stated
that the veteran’s acute situational maladjustment had
cleared and that he was emotionally mature and fit for
enlistment. No other psychiatric disorders were noted on the
veteran’s entrance examination. As such, the veteran is
entitled to the presumption of soundness, and while there is
some evidence to the contrary that presumption is not
rebutted in the record by clear and unmistakable evidence.
The record further shows that the veteran was discharged from
active duty following Medical Board proceedings in March 1981
in which the veteran was diagnosed as suffering from a
moderately severe chronic depressive disorder. Since his
discharge, the record shows that the veteran has continued to
be treated for an acquired psychiatric disorder, including
bipolar affective disorder. As there is no evidence of an
intercurrent injury or disease, the Board concludes that the
veteran’s inservice acquired psychiatric disorder may not be
disassociated from his current symptomatology without
engaging in unwarranted speculation. Colvin v. Derwinski, 1
Vet.App. 171, 175 (1991). Therefore, after considering all
of the foregoing, and the doctrine of reasonable doubt, the
Board concludes that service connection is warranted for an
acquired psychiatric disorder.
ORDER
Entitlement to service connection for an acquired psychiatric
disorder is granted.
DEREK R. BROWN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
Clear and unmistakable evidence describes the persuasiveness of the evidence. Akins v. Derwinski, 1
Vet.App. 228, 231 (1991). 38 C.F.R. § 3.304(b), provides that clear and unmistakable evidence is evidence
that is obvious or manifest. Evidence is obvious or manifest if it easy discovered, seen or understood.
WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 724, 816 (1985).
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